Opinion
November Term, 1897.
Francis M. Scott, for the appellant.
Chas. J. Patterson, for the respondent.
By the order appealed from the appellant was adjudged guilty of contempt in disobeying an order of this court by which he was required forthwith to reinstate the relator, Fallon, in the position or office of warden of the city prison of the city of New York, and "to restore to him the possession of the said office or position and the rights, powers, privileges and emoluments thereof." The proof upon which the court below acted necessitated the conclusion at which it arrived, and any other disposition of the application to punish the appellant would have rendered the administration of justice itself contemptible. The appellant, presumably a man of intelligence, the incumbent of an important official position in the municipal government, willfully and flagrantly disobeyed the command of the court and attempted to evade it upon a shallow pretext, which has not even the merit of plausibility. He was required to reinstate the relator in the position or office from which he had been unlawfully removed, with the rights, powers and privileges pertaining to that position. What those rights, powers and privileges were, were fully understood. The relator had been the sole warden of the city prison; he was in the exclusive exercise of the functions or powers of that office; he was exclusively entitled to the rights and privileges of it as well as exclusively burdened with its responsibilities. It was the imperative command of the court that he should be reinstated so that he would reoccupy the position from which he was removed, precisely as he had occupied it at the time of his removal. Nothing can be plainer or more distinct than the requirement of the order of this court. It does not need interpretation; there is nothing ambiguous; but in as formal and exact terms as language can import, the precise duty required of the appellant was indicated and defined. No act of the appellant can relieve him from the responsibility of obeying the command of the court. If he had interposed obstructions to the enforcement of that command, it was his duty to remove such obstructions, and he cannot take shelter behind the claim that he has himself erected a barrier which prevents him from complying with a positive mandate of the court. By such conduct he merely aggravates his former wrong and evinces a disposition to continue and not to repair it. The alleged reason he assigns for non-compliance with the full order of the court is that he appointed another warden of the city prison, making his appointee a conjoint incumbent of the position with the relator, Fallon. His appointee is the same individual who was appointed sole warden upon the illegal removal of this relator, and who held the position as sole warden until the relator was declared by this court to be entitled to the full reinstatement. When the final order or judgment was served upon the appellant, there was but one acting warden in possession of the office, exercising its powers and enjoying its rights and privileges. As soon as the order of this court became operative, the appellant, instead of at once placing the relator in the position in which the court directed him to be placed, announced that he would be restored to the position of one of the wardens, and immediately assigned him to a duty which constituted him nothing more than a night watchman in one of the city prisons. Under the name and title of warden, the appointee of the appellant was continued as warden and invested with the rights and the powers and the enjoyment of the privileges which had pertained originally to the relator and to which it was the instruction of this court that the appellant should restore him. That this was a mere subterfuge to retain the ad interim incumbent and to evade the performance of the positive command of this court, is painfully apparent. We do not intend to intimate that if the necessity arose for having more than one warden of the city prison, it would not be within the competency of the proper authority to appoint an additional warden, but it is too clear for mistake that the retention of the personal appointee of this commissioner under the guise of making him an additional warden, was only for the purpose of retaining him in office through the degradation of the relator who had successfully appealed to the protection of the court. What necessity existed for the appointment of a second warden, and which arose only on the day the final order of this court became operative? All the duties, functions and powers of that office had been executed by a single individual up to the time the order of this court was issued. What necessity arose over night for a change in the situation? It is said that the right to appoint another official is one which resides with the commissioner of correction. Granting that, the question becomes merely one of good faith, and there is nothing in this record to show any other reason, so suddenly arising, requiring an additional warden than a purpose to defeat this relator in his just claim to full restitution to everything of which he had been deprived in connection with the position from which he had been removed unlawfully.
The order appealed from must be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and WILLIAMS, JJ., concurred.
Order affirmed, with costs.